First, what it is — and is not: The 2008 legislation that “amended” the Foreign Intelligence Surveillance Act (FISA) — which in reality simply codified all of the illegal activity that the Bush administration had been carrying out when it conducted electronic surveillance on Americans without first obtaining the requisite warrant from the FISA court — requires the inspectors-general from four intelligence agencies and the Department of Defense to report to Congress on the effectiveness of the surveillance activities that took place in the preceding year.

… The IG Report is more notable for what it fails to address than for what it discloses, but that’s the nature of IG Reports. Most of the key players who authorized the illegal domestic spying — David Addington, John Yoo, Dick Cheney, Andrew Card, John Ashcroft, George Tenet — simply refused to talk to the IGs or, in many cases, didn’t even bother responding to their request. The IG’s have no power at all to compel them to do so; it’s entirely optional. That — aside from the fact that they work within the Executive Branch and for the very agencies they are supposed to investigate — is what makes IGs such an inadequate substitute for real oversight: no matter how much integrity and independence they might have, they are extremely limited in what they can achieve.

As any litigator will tell you, the lack of power to compel key witnesses to answer questions and produce documents severely hampers any ability to conduct a real investigation. Yet, when they passed the FISA Amendments Act — which legalized Bush’s spying programs and immunized lawbreaking telecoms — Democratic leaders kept pointing to the requirement of an IG Report to placate those complaining that they were whitewashing and legalizing Bush abuses. But IGs are simply incapable, given their very limited powers and their institutional allegiances, of any real investigation of this sort. What they were unable to disclose in this Report underscores how limited are their investigative abilities.

It turns out that from 2001 to 2003, Yoo was the only person at the OLC who was “read in” to the program. His boss, Jay Bybee, had no idea what Yoo was doing and first learned of the NSA program from media reports. That’s simply astounding. As the report points out, OLC opinions were supposed to be peer-reviewed and represent the studied opinion of the Justice Department. But Yoo was issuing official OLC opinions that no other lawyers at the OLC had reviewed, including the head of the OLC.

Yoo was completely unaccountable. And these were the results:

Yoo’s November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program. Yoo acknowledged that FISA “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but opined that “[s]uch a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities.” Yoo characterized FISA as merely providing a “safe harbor for electronic surveillance,” adding that it “cannot restrict the President’s ability to engage in warrantless searches that protect the national security.” According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. You wrote that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.”

It’s difficult to put into words how insanely deficient this legal “analysis” is. The entire point of FISA was to constrain the president’s ability to conduct warrantless surveillance for national security purposes. Prior to FISA, Title III already prohibited warrantless surveillance in the law enforcement context. FISA was intended to provide similar protections in the national security context. Not only did FISA make clear that it provided the “exclusive means” for conducting electronic surveillance, but, as the report points out, it has a provision that suspends its requirements for 15 days following a declaration of war, a clear indication that the statute was intended to apply in war time as well as peace time.

Lest anyone believe that those statements are not “clear” enough, here’s what the Senate report that accompanied the passage of FISA had to say about the intent of the legislation:

[FISA] puts to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillance in the United States outside of the procedures contained in chapters 119 and 120.

Still not clear? Well, consider this. Prior to FISA, there was a provision in the federal code that stated the following:

Nothing in this chapter shall limit the constitutional power of the President to take such measures as he deems necessary to protect the nation against actual or potential attack . . . or to protect national security against foreign intelligence activities

FISA expressly repealed that provision. The Committee Report explained that the repeal of this provision “eliminat[ed] any congressional recognition or suggestion of inherent Presidential power with respect to electronic surveillance.”

Another part of the report states that Congress, by passing FISA, was intending to assert its maximal authority in this area under the framework of Youngstown, thereby reducing the president’s powers to their “lowest ebb.”

Which brings me to another glaring omission from Yoo’s opinion. From the OIG Report:

Yoo’s legal memorandum omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of governmental powers between the Executive and Legislative Branches. Justice Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions on the legality of the PSP.

This is putting things very diplomatically. Youngstown is not just a leading case; it is THE leading case addressing the extent of the president’s Article II authority. Writing an opinion like this without mentioning Youngstown is like writing an opinion about the legality of an abortion-related statute without citing Roe v. Wade. It’s flat out malpractice, particularly when the case in question completely undermines your argument.

It did, however, make Yoo the ideal choice for Dick Cheney and David Addington:

… Cheney and Addington knew that Yoo was a hardened ideologue who would authorize anything they wanted. So they purposely chose only him — a low-level Assistant Attorney General — to be “read into” the program, and then used his memos to give themselves legal cover. The same thing happened in the realm of torture. This is what reveals how corrupt is the claim that Bush officials cannot be held accountable for the laws they broke because they had DOJ lawyers telling them it was legal. These legal opinions were anything but exercises in good faith. They were nothing more than bureaucratic cover to commit crimes, and — as the IG Report makes clear — ones that were as factually inaccurate as they were legally flawed (yet John Yoo remains on the faculty of Berkeley Law).

Publius at Obsidian Wings also provides some excellent analysis of the John Yoo Horror School of Law.

Over at The Washington Monthly, Hilzoy examines another part of the IG report: The dramatic hospital bedside scene in which Alberto Gonzales and Andrew Card, at Pres. Bush’s behest, try to pressure an ailing John Ashcroft to sign the reauthorization for the surveillance programs after James Comey and Jack Goldsmith have refused to certify that the programs are legal.

“On the morning of March 11, 2004, with the Presidential authorization set to expire, the President signed a new authorization for the PSP. [Ed. note: the Presidential Surveillance Programs.] In a departure from the past practice of having the Attorney General certify the authorization as to form and legality, the March 11 authorization was certified by White House counsel Gonzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. It explicitly asserted that the President’s exercise of his Article II Commander-in-Chief authority displaced any contrary provisions of law, including FISA. It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 authorization. (…)

At approximately noon, Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President’s determinations.”

‘The President had made an interpretation of law’. Think about that. President Bush is not a lawyer. He has no expertise on this matter. Commanding the DoJ to accept his word about what the law is is as crazy as commanding the Environmental Protection Agency to accept his determination that some power plant does not, in fact, pollute, or commanding the FDA to accept his determination that some drug is safe. (Or, alternately, to take his word for it that that power plant or drug is not a “power plant” or “drug” within the meaning of the relevant statutes, and thus that they don’t need to make any determinations about it.)

If the President gets to do that, then laws have no meaning, and we might as well have a monarchy.

I’ve been struck by this since the beginning. If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes that “if the president does it it’s not illegal.”

One could make the argument that the political fallout would be so huge if it were ever revealed that no president would ever attempt it, but we are proving right now that this is a very remote possibility. Ever since Nixon, the political class has reaffirmed the idea that anything the president does as a political leader or in his official capacity is unpunishable. And more recently we’ve seen that anyone who carries out his orders is also immune, which wasn’t always the case. Nixon’s people did do time.

If that was the intention of the revolutionaries who broke away from despotic monarchical rule, they could have saved themselves a lot of trouble. At this point, both political parties agree that if the president has a low level lawyer in the Justice Department write a secret memo authorizing him to break the law then all those who broke those laws are legally immunized from any punishment, including firing evidently.

There is no political risk in a president breaking the law — a Republican president anyway. It remains to be seen if the Republicans are so consistent when their next turn at power comes around. But as of today, they are the picture of bipartisan comity — the only thing presidents cannot legally do is lie about fellatio. And if the recent cavalcade of lying, adulterers in the GOP are any example, that one may no longer be applicable either. After all, all they have to do is get some clerk in the Justice Department to write them a note legalizing it and it’s all good.

One Response to “The IG Warrantless Surveillance Report”

Blah, blah, blah … in your first paragraph you fail to point out that International calls originating from overseas were being tapped. To say that Americans were being spied on without this clarification is a purposeful lie.

You lost me after that.

And again, with all the important issues out there TODAY … CFLF’s focus is behind us, not in front of us.